Cosmos on behalf of Yaburara & Mardudhunera v FMG Pilbara Pty Ltd and Another

[2014] NNTTA 10

NATIONAL NATIVE TITLE TRIBUNAL

Cosmos on behalf of Yaburara & Mardudhunera v FMG Pilbara Pty Ltd and Another, [2014] NNTTA 10 (21 January 2014)

Application No:               WO2013/0070

IN THE MATTER of the Native Title Act1993 (Cth)

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IN THE MATTER of an inquiry into an expedited procedure objection application

Kevin Cosmos and Others on behalf of Yaburara & Mardudhunera (WC1996/089) (native title party)

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The State of Western Australia (Government party)

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FMG Pilbara Pty Ltd (grantee party)

DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE

Tribunal:  Helen Shurven, Member

Place:  Perth
Date:  21 January 2014

Catchwords:  Native title – future act – proposed grant of exploration licence – expedited procedure objection application – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites of particular significance – whether act likely to cause major disturbance to land or waters – expedited procedure attracted

Legislation:  Native Title Act 1993 (Cth), ss 29, 31, 146, 151(2), 237

Aboriginal Heritage Act 1972 (WA)

Mining Act 1978 (WA), ss 61(2), 66

Environmental Protection Act 1986 (WA)

Environmental Protection (Clearing of Native Vegetation) 2004 (WA)

Cases:

Wilma Freddie and Others/Western Australia/Asia Investment Corporation Pty Ltd [2004] NNTTA 30, (‘Freddie v Asia Investment Corporation’)

Butcher Cherel and Others/Western Australia/Faustus Nominees Pty Ltd [2007] NNTTA 15, (‘Cherel v Faustas Nominees’)

Cheinmora and Others v Heron Resources Ltd and Another (2005) 196 FLR 250 [2005] NNTTA 99, (‘Cheinmora v Heron Resources’)

Les Tullock and Others on behalf of the Tarlpa Native Title Claimants/Western Australia/Bushwin Pty Ltd [2011] NNTTA 22, (‘Tarlpa v Western Australia’)

Little and Others v Oriole Resources Pty Ltd (2005) 146 FCR 576, (‘Little v Oriole Resources’)

Maitland Parker and Others/Western Australia/Derek Noel Ammon [2006] NNTTA 65, (‘Parker v Ammon’)

Maitland Parker and Others /Western Australia/Iron Duyfken Pty Ltd [2010] NNTTA 60, (‘Parker v Iron Duyfken’)

Nicholas Cooke & Others on behalf of the Innawonga People/Western Australia/Dioro Exploration NL [2008] NNTTA 108 (‘Cooke v Dioro Exploration’)

Parker on behalf of the Martu Idja Banyjima People v State of Western Australia [2007] FCA 1027, (‘Parker v Western Australia No1’)

Parker v Western Australia and Others (2008) 167 FCR 340, (‘Parker v Western Australia No 2’)

Rosas v Northern Territory and Another (2002) 169 FLR 330; (2002) NNTTA 113, (‘Rosas v Northern Territory’)

Silver and Others v Northern Territory of Australia and Others (2002) 169 FLR 1; [2002] NNTTA 18, (‘Silver v Northern Territory’)

Smith v Western Australia and Another (2001) 108 FCR 442, (‘Smith v Western Australia’)

Walley and Others v Western Australia and Another (2002) 169 FLR 437; [2002] NNTTA 24, (‘Walley v Western Australia’)

Wilfred Goonack and Others /Western Australia/Geotech International Pty Ltd and Another [2009] NNTTA 72, (‘Goonack v Geotech’)

Representatives of the     Ms Shirley Feng, Corser & Corser

native title party:

Representatives of the     Mr Rod Wahl, State Solicitor’s Office

Government party:         Ms Bethany Conway, Department of Mines and Petroleum

Representatives of the    
grantee party:                 Ms Nerolie Nikolic, Fortescue Metals Group Ltd

REASONS FOR DETERMINATION

1. On 19 September 2012, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) (‘the Act’) of its intention to grant exploration licence E08/2367 (‘the proposed licence’) to FMG Pilbara Pty Ltd (‘the grantee party’). The Government party included in the notice a statement that it considered the grant attracted the expedited procedure (that is, one which can be done without the normal negotiations required by s 31 of the Act).

2. According to the s 29 notice, the proposed licence is approximately 61.6 square kilometres in size and is located 60 kilometres north west of Pannawonica, in the Shire of Roebourne. The proposed licence is wholly overlapped by the registered claim of the Yaburara and Mardudhunera People (WC1996/089 – registered from 1 August 1996). The proposed licence is also wholly overlapped by the registered claim of the Kuruma Marthudunera (WC1999/012).

3. On 17 January 2013, an expedited procedure objection application was lodged with the Tribunal by Kevin Cosmos and Others on behalf of the Yaburara and Mardudhunera native title claim group (‘the native title party’) (designated WO2013/0070). An objection application in relation to the proposed licence was also lodged on behalf of Kuruma Marthudunera (designated WO2013/0046), and the Tribunal was advised by the native title party on 17 June 2013 that the objection was being withdrawn as an agreement has been reached.

4. In accordance with standard practice, the Tribunal gave directions to parties to provide contentions and documents for an inquiry to determine whether or not the expedited procedure is attracted. These directions allow a period after the s 29 closing date for the lodgement of objections, for parties to discuss the possibility of reaching an agreement which could lead to disposal of the objection by consent. The native title party confirmed they had no further submissions to make and agreed to proceed to inquiry on the papers on 2 September 2013, as did the grantee party on 30 August 2013 and the Government party on 30 August 2013.

5. I was appointed as the member for the purpose of conducting the inquiry.

6. The following information and evidence was provided in relation to the proposed licence:

   ·Materials from DMP on 19 July 2013, including reports and plans from the Department of Aboriginal Affairs ((DAA) – formerly the Department of Indigenous Affairs (DIA)), Sites Register, copies of the tenement application and a Tengraph quick appraisal;

   ·Contentions of the native title party, dated 5 August 2013;

   ·Contentions and evidence of the grantee party, dated 12 August 2013, including the sworn affidavit of Mr Thomas James Weaver;

   ·Contentions of the Government party, dated 19 August 2013.

7. A map was generated by Tribunal Geospatial Services for use in these proceedings and circulated to parties on 23 September 2013 for comment. No comments were received.

Legal principles

1. Section 237 of the Act provides:

   A future act is an act attracting the expedited procedure if:

   (a)     the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

   (b)     the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

   (c)      the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

2. In Walley v Western Australia, Deputy President Sumner considered the applicable legal principles (at [7]–[23]) and I adopt those principles for the purposes of this inquiry (s 146 of the Act).

3. In relation to the nature of an exploration licence including conditions to be imposed, I adopt the principles outlined in Tarlpa v Western Australia at [10]-[16].

4. In relation to determining s 237(a), I adopt the following principles from Tarlpa v Western Australia:

   ·History and interpretation of s 237(a) as amended (at [57]-[64]).

   ·The Tribunal’s approach to the interpretation of s 237(a) as amended (at [75]). The Hon C J Sumner, Deputy President, has made it clear (at [66]) that ‘the law as applied by the Tribunal since the 1998 amendments does now require there to be evidence of direct interference with the community or social activities of the native title party which are of a physical and not purely spiritual nature for the expedited procedure not to be attracted.’

   ·The definitions of ‘interfere directly’ and ‘carrying on’ as applied to s 237(a) (at [105]-[109]).

   ·Must the community or social activities take place on the proposed licence area? (at [85]-[86]).

5. With respect to issues arising under s 237(b), I adopt principles the Tribunal outlined in Parker v Ammon at [31]–[38], [40]-[41] (see also Parker v Western Australia No1 and Parker v Western Australia No2).

6. The task of the Tribunal in relation to s 237(c) is to undertake a predictive assessment as to the likelihood of major disturbance to land and waters, on the basis that major disturbance should be determined by reference to what was likely to be done, rather than what could be done (see Little v Oriole Resources, in particular [588]-[589]).

Evidence and Contentions in Relation to the Proposed Act

Government Party

1. Government party documentation establishes the underlying land tenure of the proposed licence to be as follows:

   ·Pastoral Lease 3114/1027 (Mardie) at 66.5 per cent;

   ·Crown Reserve (De Grey Mullewa Stock Route & Watering Place for Travellers & Stock) at a total of 30.7 per cent;

   ·Vacant Crown Land at 2.6 per cent; and

   ·Road reserve at 0.1 per cent.

2. Government party documentation establishes: four previously granted exploration licences overlapping the proposed licence variously between less than 0.1 and 100 per cent between 1982 and 2012, and now all surrendered.

3. The quick appraisal document shows that services affected include: one minor road; 11 tracks; two airfield runways; eight buildings; two fence lines; four wells/bores with windmills; six minor watercourses including Mardie Creek; and one spring/soak/rockhole/waterhole (Mardie Pool).

4. The DAA registered sites list indicated four sites on the proposed licence which are:

   oSite ID 6322, Mardie Creek Burial (Ceremonial, skeletal material/burial, artefacts/scatter, midden/scatter, grinding patches/grooves);

   oSite ID 10351, Wiruwandi Plain (Mythological);

   oSite ID 11409, Mardie Station A (Engraving, artefacts/scatter);

   oSite ID 11410, Mardie Station B (Engraving, artefacts/scatter).

The database also indicates there is one ‘other heritage place’, being:

oSite ID 26578, Wirawundi Pool (Mardie Pool) (Mythelogical, artefacts/scatter, midden/scatter, historical).

1. Tribunal mapping indicates that there are no Aboriginal communities located upon or near the area of the proposed licence.

2. The draft tenement Endorsement and Conditions Extract for the proposed licence provided by DMP, and dated 19 July 2013, indicates that the grant will be subject to the standard four conditions imposed on the grant of all exploration licences in Western Australia (see Tarlpa v Western Australia at [11]), in addition to the following:

   5.The Licensee notifying the holder of any underlying pastoral or grazing lease by telephone of in person, or by registered post if contact cannot be made, prior to undertaking airborne geophysical surveys or any ground disturbing activities utilising equipment such as scrapers, graders, bulldozers, drilling rigs, water carting equipment or other mechanised equipment.

   6.The Licensee or transferee, as the case may be, shall within thirty (30) days of receiving written notification of:-

   ·the grant of the Licence; or

   ·registration of a transfer introducing a new Licensee;

   advise, by registered post, the holder of any underlying pastoral or grazing details of the grant or transfer.

   7.No exploration activities being carried out on De Grey Mullewa Stock Route Reserve 9701 which restrict the use of the reserve.

   8.No interference with the use of the Aerial Landing Ground and mining thereon being confined to below a depth of 15 meters from the natural surface.

   9.The prior written consent of the Minister responsible for the Mining Act 1978 being obtained before commencing any exploration activities on CR 379.

3. The following endorsements (which differ from conditions in that the breach of an endorsement does not make the licensee liable to forfeiture of the licence) will also be imposed on the grant of the proposed licence:

   1.The Licensee’s attention is drawn the to the provisions of the Aboriginal Heritage Act 1972 and any related Regulations thereunder;

   2.The Licensee’s attention is drawn to the Environmental Protection Act 1986 and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004, which provides for the protection of all native vegetation from damage unless prior permission is obtained;

   3.The Licensee, pursuant to the approval of the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron;

   In respect to Water Resources Management Areas (WRMA) the following endorsements apply:

   4.The Licensee attention is drawn to provisions of the:

   • Waterways Conservation Act, 1976

   • Rights in Water and Irrigation Act, 1914

   • Metropolitan Water Supply, Sewerage and Drainage Act, 1909

   • Country Areas Water Supply Act, 1947

   • Water Agencies (Powers) Act 1984

   • Water Resources Legislation Amendment Act 2007

   5.The rights of ingress to and egress from the mining tenement being at all reasonable times preserved to officers of Department of Water (DoW) for inspection and investigation purposes;

   6.The storage and disposal of petroleum hydrocarbons, chemicals and potentially hazardous substances being in accordance with the current published version of the DoWs relevant Water Quality Protection Notes and Guidelines for mining and mineral processing;

   In respect to Artesian (confined) Aquifers and Wells the following endorsement applies:

   7.The abstraction of groundwater from an artesian well and the construction, enlargement, deepening or altering of any artesian well is prohibited unless a current licence for these activities has been issued by the DoW.

   In respect to Waterways the following endorsement applies:

   8.Advice shall be sought from the DoW if proposing any exploration within a defined waterway and within a lateral distance of:

   • 50 metres from the outer-most water dependent vegetation of any perennial waterway, and;

   • 30 metres from the outer-most water dependent vegetation of any seasonal waterway.

   9.The Licensee pursuant to the approval of the Minister responsible for the Mining Act 1978 under Section 111 of the Mining Act 1978 is authorised to explore for iron

   In respect to Proclaimed Surface Water and Irrigation District Areas the following endorsements apply:

   10.The abstraction of surface water from any watercourse is prohibited unless a current licence to take surface water has been issued by DoW.

   11.All activities to be undertaken with minimal disturbance to riparian vegetation.

   12.No exploration being carried out that may disrupt the natural flow of any waterway unless in accordance with a current licence to take surface water or permit to obstruct or interfere with beds and banks issued by the DoW.

   13.Advice shall be sought from the DoW and the relevant service provider if proposing exploration being carried out in an existing or designated future irrigation area, or within 50 metres of an irrigation channel, drain or waterway.

   In respect to Proclaimed Ground Water Areas the following endorsement applies:

   14.The abstraction of groundwater is prohibited unless a current licence to construct/ alter a well and a licence to take groundwater has been issued by the DoW.

4. The Government party indicate that the grantee party offered to enter into a Regional Standard Heritage Agreement (RSHA) with the native title party on 15 August 2012, and that the grantee party has already entered into an RSHA with the Kuruma Mathudunera claim group in relation to the proposed licence area. As noted at [3] above, the objection made by that native title group was withdrawn on the basis that agreement had been made between them and the grantee party.

5. The Government also provide details of the grantee party’s proposed method of exploration, as outlined in their statement of contentions (dated 12 August 2013), which include:

   ·literature research;

   ·aerial photography and satellite imagery;

   ·geological mapping and rockchip sampling;

   ·interpretation of data sets;

   ·gridding, access and Aboriginal heritage clearance;

   ·reverse circulation and diamond drilling;

   ·interpretation, resource estimation and technical reporting; and

   ·metallurgical testing.

6. The Government party contend, in the absence of evidence to the contrary, that the Tribunal must assume a grantee party will not act in breach of the relevant statute law, regulations or conditions imposed upon them (at 22).

7. The Government party state that no evidence has been provided to support the contentions made by the native title party and that their statements are too general to be given any significant weight, or to be relied upon by the Tribunal (at 25-26).

Government party - s 237(a)

1. The Government party states there is no evidence to support the contention that camping, hunting and fishing takes place within the proposed licence area (at 42). They contend (at 43) that, to the extent the Tribunal finds members of the native title party do carry out community and social activities, there is not likely to be interference with those activities because:

   ·the proposed exploration is relatively low-impact and non-intrusive;

   ·the grantee party is willing to enter into an RSHA ;

   ·the relevant portion of the proposed licence has been subject to prior mineral exploration and possible mining activity, and is significantly overlapped by pastoral lease and crown reserves (CR379 and CR9701). Therefore, some of these interests would have at least affected any native title rights to control access to and use of the proposed licence. Further, the activities of the native title party have been ‘subject to, or coexistent with, all of these lawful activities for a significant period of time’;

   ·there are no Aboriginal communities within the area of the proposed licence;

   ·the low scale and infrequent exploration activities planned by the grantee party do not appear likely to have any disruptive effect upon activities in the proposed licence area; and

   ·hunting and mineral exploration are, by their nature, inherently capable of coexistence and the Tribunal has on numerous occasions found that to be the case and determined that the grant of an exploration licence is not likely to interfere with hunting.

Government party - s 237(b)

1. In relation to s 237(b), the Government party state that the mere presence of registered heritage sites and other heritage places is not determinative of whether these sites constitute a “site of particular significance” within the meaning of s 237(b) of the Act. Further to this, the Government party contends that insufficient evidence has been provided by the native title party to determine whether these sites are sites of particular significance in line with s 237(b).

2. The Government party state that, in the event there are any sites of particular significance within the proposed licence area, interference is unlikely because:

   ·The grantee party is aware of the existence of the registered heritage sites and its legal obligations in respect to these. The grantee party has expressed a willingness to work with the native title party to avoid interfering with these sites through offering to enter into an RSHA. Under such terms, the native title party would have an option of enforcing this expression of intention against the grantee party through entering into an RSHA. I note in this matter the grantee party have already entered into an RSHA with another group, although under the RSHA condition, the grantee party would be required to enter into an RSHA with the native title party also, if requested by them to do so.

   ·Proposed exploration activities will be low impact and non intrusive;

   ·The native title party’s concern that site areas will become more accessible are not supported by the information provided by the grantee party regarding their exploration activities, which consist of predominantly low impact and non ground disturbing activities. Any negative effects will be further mitigated through he proposed condition and endorsements the Government party intends to place on the grant of the licence. The Government party states that the same may be said for the native title party’s concerns regarding spiritual disturbance, although they acknowledge this is less tangibly measured;

   ·The native title party’s contentions regarding disturbance to the 'beings and equilibrium' reflects a general spiritual concern, whereas 237(b) of the Act relates to spiritual or emotional concerns that attach to physical interference with an identified site or area of particular significance;

   ·It has been subject to prior mineral exploration and is largely covered by a pastoral lease and crown reserves; and

   ·The regulatory regime is likely to prevent interference with any site of particular significance.

Government party - s237(c)

1. The Government party states that major disturbance to land or waters is unlikely because:

   ·The proposed exploration activities are low impact and non intrusive;

   ·The State’s regulatory regimes, and the proposed conditions and endorsements, are likely to avoid and or mitigate any disturbance to land or waters;

   ·of the proposed conditions and endorsements (some of which specifically concern the protection of waterways);

   ·the has been subject to prior mineral exploration and is largely covered by a pastoral lease and crown reserves; and

   ·the proposed licence area does not have particular characteristics that would be likely to result in major disturbance as per s 237(c).

Native title party

Native title party - s 237(a)

1. The native title party contentions relating to s 237(a) state (at 6) that members of the Yaburara and Mardudhunera claimant group engage in traditional activities such as camping, hunting and fishing within the proposed licence. They also note (at 7) that one of the rights the grantee party is afforded under s 66 of the Mining Act is the right to enter the land with such agents, employees, vehicles, machinery and equipment for the purpose of exploring for minerals in, or under, the land, and contends that these activities will inhibit the native title party’s ability to camp within the proposed licence. They argue it is highly likely that the presence of such vehicles and machinery will scare off any wild animals such as kangaroos, goanna and wild turkey from the area, which affects the native title party’s ability to hunt in the proposed licence area.

Native title party - s 237(b)

1. The native title party states (at 8) there are four sites registered with the DAA within the proposed licence (being those outlined at [17]). They state these sites, including Wiruwandi Plain, are of great significance to the native title party as they contain important artifacts and scatterings left behind by the Yaburara and Mardudhunera people’s ancestors as a result of their historical occupation and observance of traditional ceremonies within the proposed licence (at 8).

2. The native title party contend (at 9) that any interference on or near these sites, including exploration activity, will upset the equilibrium in these areas. They argue (at 11) that even though the grantee party is now on notice that significant sites exist within the proposed licence, the exact location of these sites is unknown to them, and, therefore, the Aboriginal Heritage Act (AHA) will fail to protect these sites unless there is close liaison between the native title party and the grantee party through negotiation and agreement. The native title party also contend (at 10) there is likely to be further sites of significance within the proposed licence, such as artefact scatterings, particularly near the areas surrounding Mardie Creek and Mardie Pool. The native title party do not, however, elaborate on this assertion with any further details or evidence.  Tribunal mapping indicates that Mardie Pool and Mardie Creek are in the north-west portion of the proposed licence.

3. The native title party’s contentions state they are currently undertaking further investigation into significant sites within the area, and seek leave to submit supplementary submissions and evidence in this regard. However, since the native title party’s contentions were lodged, no further submissions have been provided and the native title party agreed to the matter proceeding on the basis of the material currently before the Tribunal.

4. The native title party suggest that if the expedited procedure applies to the proposed licence, then it should only be granted on the condition that surveys are conducted before any exploration activity commences. However, the native title party representative should be aware that the Tribunal is unable to impose any such condition during, or as the result of, an expedited procedure inquiry.

Native title party - s 237(c)

1. The native title party submit (at 13) that if the grantee party performs exploration activities in the proposed licence without the land and waters being surveyed, and without monitors being present when the area is being disturbed, there is a risk of damage to the land and to items left behind by the native title party’s ancestors. They note (at 14) that the grantee party has not yet provided any evidence as to their exploration intentions.

2. The native title party state (at 16) that the disturbance in this case has such consequences for people in the local area as to properly be called a major disturbance, ‘notwithstanding that it would be of no consequence to non-Aboriginals who live far away’. They state (at 17) there is a strong law requiring the native title party to care for and protect places where their ancestors have lived, and particularly where they camped, carried out ceremonies or were buried, as the spirits of their ancestors live in these places. Furthermore, they state (at 18) if these places are disturbed or damaged, then in the native title party’s belief system they can expect that the disturbance of their ancestors’ spirits will lead to misfortune, ill health and possibly death within their people’s society. As a result, when exploration activities are to occur without arrangements being in place for the identification and protection of sites and artefacts, the native title party states they will ‘experience strong fear of the adverse consequences likely to befall them if and when their ancestors’ spirits are disturbed by damage or interference with the places that they inhabit’.

Grantee party

1. The grantee party provided a statement of contentions, dated 12 August 2013, as well as the affidavit of Mr Thomas Weaver, the Native Title Manager for Fortescue Metals Group Ltd (‘FMG’), which is set out at Annexure A of this determination.  The grantee party is a wholly-owned subsidiary of FMG and it appears that FMG determines the overarching policies and procedures under which its subsidiaries operate.

2. Mr Weaver attests the grantee party is cognisant of its obligations under the AHA (at 7 and 8) and FMG has an Aboriginal Heritage Department, which is responsible for ensuring that it meets its obligations under: the AHA; any agreements between FMG and third parties; and any other areas that FMG accepts are of particular importance to Aboriginal people (at 8).

3. Mr Weaver goes on to outline the process FMG uses to minimise the risk of damage to heritage sites.  The process utilised by FMG and its subsidiaries involves the requirement for the internal issue of “ground disturbance permits” (‘GDPs’) before employees or contractors can undertake any ground disturbing work (at 9).  According to Mr Weaver’s affidavit, various matters must be satisfied before a GDP is issued, including Aboriginal heritage (at 9).  Mr Weaver deposes (at 9) that the following must be addressed before a GDP can be issued:

   ·all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements must be in place;

   ·ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;

   ·identify whether a heritage survey is required;

   ·ensure that access to the GDP area is defined;

   ·evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ heritage sites or exclusion zones;

   ·check that all approvals such as s18 of the AHA are in place; and

   ·any other applicable items.

4. According to Mr Weaver’s affidavit, FMG is aware of the Register of Aboriginal Sites maintained by the Registrar of Aboriginal Sites under the AHA and also maintains its own record of Aboriginal heritage sites through the various heritage surveys that FMG has carried out (at 13 and 14). FMG maintains its own geographic information system, which uploads the information from the Register of Aboriginal Sites on a monthly basis and also includes all the information gathered from the various heritage surveys undertaken by FMG (at 14).

5. Mr Weaver states that FMG have entered into a Heritage Agreement with the Kuruma Marthudunera Native Title Claimants, dated 1 May 2013, over the proposed licence area (at 15).  He also states that FMG endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by DMP (at 16).

6. Mr Weaver has attached to his affidavit at TJW3, a copy of the grantee party’s outline of proposed works, which was part of the grantee party’s application for the proposed licence.  It states that the initial phase of exploration work will comprise:

   ·a literature search and analysis of previous publicly available data;

   ·the acquisition of aerial photography, satellite imagery, aeromagnetic or other geophysical data sets to be ortho-rectified and imported into its data management system;

   ·geological mapping and rock chip sampling;

   ·interpretation of historical, geophysical and geochemical data sets and target selection;

   ·administration, management and supervision; and

   ·gridding, access and Aboriginal heritage clearance.

7. Further work, depending on the results from the first phase of work, may include:

   ·reverse circulation and diamond drilling;

   ·interpretation, resource estimation and technical reporting; and

   ·metallurgical testing.

8. The grantee party contentions note (at 4.2) that the Aboriginal sites recorded by DAA lie wholly within the De Grey Mullewa Stock Route and the Mardi pastoral lease.

Considering the evidence

Community or social activities (s 237(a))

1. The Tribunal is required to make a predictive assessment of whether the grant of the proposed licence and activities undertaken in relation to the grant are likely to interfere with the community or social activities of the native title party (in the sense of there being a real risk of interference), (see Smith v Western Australia at [23]). Direct interference involves an evaluative judgment that the future act is likely to be the proximate cause of the interference, and must be substantial and not trivial in its impact on community or social activities (see Smith v Western Australia at [23]). The assessment is also contextual, taking into account factors that may already have impacted on a native title party’s community or social activities (such as mining or pastoral activity) (see Smith v Western Australia at [27]).

2. The Tribunal has accepted that the intentions of the grantee party in a particular matter are relevant in assessing whether the activities are likely to directly interfere with the carrying on of a native title party’s community or social activities, or interfere with areas or sites of particular significance to a native title party. In Silver v Northern Territory at [29]-[30], Member Sosso (whose approach I adopt) outlined that:

   The adoption of a predictive assessment necessarily allows the Tribunal to receive evidence of a grantee’s intention where that evidence is adduced. In the absence of any evidence of intention, the Tribunal would be at liberty to assume that a grantee will fully exercise the rights conferred by the tenement ... evidence of intention cannot be unilaterally discarded in advance, as it is logically relevant to the question of likelihood.

3. The grantee party’s intended activities have been outlined in terms of its initial exploration program, and its general approach to its activities and its intentions are outlined at [37]-[42].

4. The Government party notes (at 17) that the grantee party has indicated its willingness to enter into an RSHA, demonstrated by sending the offer by email to the native title party’s representatives on 15 August 2012.  

5. The native title party’s submissions relating to s 237(a) of the Act are outlined at [29] above, which relate to its camping, hunting and fishing activities on the proposed licence.

6. In response to the native title party’s contentions, the Government party states (at 42)  there is no evidence that members of the native title party carry out community or social activities such as camping, fishing and hunting within the proposed licence.

7. To the extent the Tribunal may accept that the evidence demonstrates members of the native title party carry out community and social activities, the Government party submits that there is not likely to be direct interference due to the factors listed at [25] above.

8. In relation to these points, I accept past and present pastoral, exploration and mining activities are likely to have affected, and are likely to continue to affect, the community or social activities of the native title party if and where they exist.  While there is no specific evidence of the degree of such interference, the Tribunal is entitled, as part of the overall context, to have regard to the fact that these previous activities will already to some extent have interfered with the native title party’s community and social activities (see Tarlpa at [122]). 

9. The total area of the Yaburara and Marthudunera People claim is approximately 9529.16 square kilometres and the proposed licence is approximately 70.24 square kilometres.  Consistent with previous Tribunal decisions, such as Cooke v Dioro Exploration, I find the size of the proposed licence area, in the context of the much larger native title determination area, makes it less likely that the proposed exploration activity will interfere with the native title party’s community or social activities (even if they had been shown to be carried out in the proposed licence area).

10. As the Tribunal has found in previous determinations, evidence about community or social activities which is of a general and unspecified nature will be insufficient to lead to a finding that the proposed act will directly interfere with those activities in a substantial or more than trivial way (see Freddie vAsia Investment Corporation, at [14])). In the present matter, the native title party has provided no affidavit evidence and the contentions relating to this section are brief and of a very general nature.

11. The Tribunal must have regard to the fact that the grantee party’s access to the area would be temporary and limited to the areas in which exploration is taking place.  In general, the Tribunal has found that, because of its relatively limited and temporary nature, exploration activity is not likely to directly interfere with a native title party’s community or social activities except in an incidental and insubstantial way.  I believe this is such a case.

12. In the circumstances, taking into account the evidence available, I am unable to conclude there would be interference of the kind contemplated by s 237(a) of the Act in this matter.

Sites of particular significance (s 237(b))

1. The issue the Tribunal is required to determine in relation to s 237(b) of the Act is whether there is likely to be (in the sense of a real risk of) interference with areas or sites of particular (that is, more than ordinary) significance to the native title party in accordance with their traditions. As noted above, it is established in DAA documentation that there are four registered sites within the proposed licence area and one Other Heritage Place. However, this does not mean there may not be other sites or areas of particular significance to the native title party over the area of the proposed licence or in the vicinity.

2. The Register does not purport to be a record of all Aboriginal sites in Western Australia, and the Tribunal will consider whether there is evidence to support the existence of relevant sites in particular matters. The AHA protects ‘Aboriginal sites’, as defined in s 4 of the AHA, whether those sites are registered or not. Section 4 defines ‘Aboriginal site’ to mean a place to which the AHA applies ‘by the operation of section 5’. While some sites may be administratively assessed as not being an ‘Aboriginal site’ under the AHA, those sites may still be ‘areas or sites of particular significance’ to the native title party ‘in accordance with their traditions’ as per s 237(b) of the Act.

3. The native title party contentions directed at s 237(b) of the Act are outlined at [30]-[33] above. As noted by the Government party (at 52-53), these contentions provide no content as to the nature of any ‘particular significance’ of the four registered sites, or of any other sites. In addition, I note the condition to be imposed on the grant of the proposed licence that no exploration activities which restrict the use of reserve 9701 (De Grey Mullewa Stock Route Reserve), are to be carried out.

4. The Government party also state (at 54) that it does not accept the native title party’s contention that mere presence in an area may cause direct interference with that area; it states whether or not something directly interferes with an area or site is a matter for evidence establishing that.

5. The grantee party has detailed its own internal policies and procedures that minimise the risk of interference with sites or areas of particular significance to the native title party, as well as its proposed work plan.

6. The Tribunal has held, on previous occasions, that the native title party must provide evidence with sufficient detail and specificity to allow the Tribunal to make the predictive assessment required by s 237(b) (see for example Parker vIron Duyfken at [39]; Cheinmora v Heron Resources at [43]). I accept the native title party’s contentions that there is a likelihood of sites existing in the proposed licence which are not on the Register, in addition to the four registered sites. However, I agree with the Government party that the evidence before me does not disclose a sufficient basis to reach a conclusion regarding the particular significance of these sites, or the likelihood of them being interfered with.

7. The regulatory regime based on the AHA has been described on numerous occasions by the Tribunal (see for example, Parker v Ammon (at [31]-[38], [40]-[41]). While the Tribunal has usually found the site protective regime based on the AHA is sufficient to ensure any interference with sites of particular significance is unlikely, each matter must be considered on its own facts (see Cherel v Faustas Nominees (at [81]-[91]). The Tribunal must consider, based on facts of particular cases and the nature and extent of sites of particular significance, whether this protective regime is sufficient to make it unlikely that there will be interference with sites of particular significance. I am satisfied, based on the available evidence, that the AHA and its associated processes, together with the endorsements and conditions to be placed on the proposed licence, are likely to prevent interference with any area or site of ‘particular significance’, should any exist, in the context of exploration activities.

8. Taking all of these factors into account, I find there is no real risk of interference with sites of particular significance as a result of the grant of the proposed licence, as envisioned by s 237(b) of the Act.

Major disturbance to land and waters (s 237(c))

1. The Tribunal is required to make an evaluative judgment on whether major disturbance to land and waters is likely to occur (in the sense that there is a real risk of it) from the point of view of the entire Australian community, including the Aboriginal community, as well as taking into account the concerns of the native title party (see Little v Oriole Resources at [41]-[57]).

2. The native title party contentions directed at s 237(c) of the Act are outlined at [34]-[35] above.

3. The Government party (at 61) states that the native title party appears to contend that ‘major disturbance to land or waters’ within the ambit of s 237(c) includes the mere presence of unauthorised persons on land, and that this contention is, in effect, that the native title party has a right of exclusive possession or obligation to keep strangers out.

1. It is well established that the starting point and pre-condition of any inquiry into matters relating to s 237(c) is evidence of proposed physical disturbance of land and waters (see Rosas v Northern Territory at [84]). To that extent, I agree with the Government party’s response that s 237(c) relates to significant, direct physical disturbance of land or waters. Cultural concerns about unauthorised access cannot, on their own, form the basis of a finding of major disturbance (see Goonack vGeotech at [44]).

2. The Government party contentions note that the grant of the proposed licence is not likely to involve major disturbance to the land or create rights, the exercise of which is likely to involve major disturbance to the land, for the reasons outlined at [28] above.

3. In relation to whether or not there is likely to be major disturbance to land or waters in this matter, I have had regard to a number of factors, including the following:

   ·66.5 per cent of the proposed licence is covered by a pastoral lease and 30.7 per cent is covered by crown reserve land. As such the Tribunal is entitled to assume some disturbance has already, and will continue to occur;

   ·The conditions imposed on the proposed licence deal with ground disturbing activities, including requirements for rehabilitation (standard conditions 1-4) and numerous additional conditions and endorsements;

   ·The grantee party has agreed to enter the RSHA should the native title party request it;

   ·The endorsements on the proposed licence direct the grantee party’s attention to the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA);

   ·There is no evidence of any sensitive topographical, geological or environmental factors which would lead people to think that exploration activities would result in major disturbance to land or waters; and

   ·There is no evidence that the grantee party is likely to fail to comply with the regulatory regime.

4. Taking into account all of these considerations, I do not find it likely that major disturbance to land and waters is likely to occur in this matter, as envisioned by s 237(c) of the Act.

Determination

1. The determination of the Tribunal is that the act, namely the grant of exploration licence E08/2367 to FMG Pilbara Pty Ltd, is an act attracting the expedited procedure.

Helen Shurven
Member
21 January 2014

ANNEXURE A
AFFIDAVIT OF THOMAS JAMES WEAVER

I, Thomas James Weaver, care of Level 2, 87 Adelaide Terrace, East Perth, Western Australia, Native Title Manager, affirm:

1.   I am employed by Fortescue Metals Group Ltd (ACN 002 594 872) (“Fortescue”) as its Native Title Manager.  My duties include the management of matters arising under the Native Title Act 1993 (Cth) (“NTA”) which concern Fortescue and its wholly owned subsidiaries (collectively “FMG”).

2.   I am authorised by FMG Pilbara Pty Ltd (ACN 106 943 838) to provide this affidavit, and do so, in support of its application for the grant of E08/2367 (“Inquiry Tenement”).

3.   The facts contained in this affidavit are, unless stated to the contrary, within my own personal knowledge and belief and are both true and correct.  In the case of facts obtained from other sources, I believe those facts to be true to the best of my knowledge, information and belief.

Background

4.   Fortescue is a public company listed on the Australian Stock Exchange.

5.   FMG is Australia’s third largest iron ore producer.

6.   FMG’s current mining operations and expansions are described in its 2012 Annual Financial Report (“Annual Report”).  A copy of the Annual Report can be downloaded from Fortescue’s web site at Heritage Act 1972 (WA)

7. FMG is aware of its obligations under the Aboriginal Heritage Act 1972 (WA) (“AHA”).

8.   FMG has an Aboriginal Heritage Department.  That department is responsible for ensuring that FMG meets its obligations:

(1)under the AHA, including in respect of Aboriginal sites, as that term is defined in s5 of the AHA;

(2)under the agreements between FMG and third parties, to the extent those obligations relate to Aboriginal heritage; and

(3)in respect of other areas which FMG accepts are of particular importance to Aboriginal people.  Those areas are designated by FMG as “heritage exclusion zones” or “heritage restricted zones” (“Heritage Zones”).

(together, “Heritage Obligations”).

9.   FMG has adopted a Ground Disturbance Permit Procedure (“GDP Procedure”).  A true copy of the GDP Procedure is annexed and marked TJW1.  Under the GDP Procedure, FMG personnel and contractors must not disturb any area unless a Ground Disturbance Permit (“GDP”) has been issued for that area.  The issue of a GDP is dependent on a range of matters being satisfied.  One of those matters concerns Aboriginal heritage.  The following extract from page 7 of the GDP Procedure describes those matters concerning Aboriginal heritage which must be satisfied before a GDP may issue:

The purpose of the Heritage review is to assess the GDP in relation to the following:

·Ensure that all heritage approvals and compliance conditions under relevant legislation, heritage agreements and land access agreements are in place;

·Ensure the GDP application is wholly within areas that have been heritage surveyed for the specific purpose;

·Identify whether a heritage survey is required;

·Ensure that access to the GDP area is defined;

·Evaluate the proximity and scope of works and assess the potential direct or indirect impact on in situ Heritage sites or the exclusion zones;

·Check that approvals (e.g. s18 under the Aboriginal Heritage Act) are in place;

·Any other applicable items.

10.    FMG has adopted a Guideline for the Management of Aboriginal Cultural Heritage for its project areas (“Heritage Guidelines”).  A true copy of the Heritage Guidelines is annexed and marked TJW2.  All FMG personnel and contractors are required to comply with the Heritage Guidelines.

11.    The following extract from page 3 of the Heritage Guidelines describes the purpose of the Heritage Guidelines:

The Guideline provides all Fortescue and contractor personnel, and visitors, on Fortescue Project Areas with a set of guidelines and procedures to:

·assist with the day to day management and protection of Sites on Fortescue project areas;

·ensure we meet our internal, statutory and community obligations with respect to the consultation, identification, assessment, protection and management of Aboriginal cultural heritage; and

·enable access to land for development activities for Fortescue operations, projects and tenements.

The Guideline applies to all stages of development of Fortescue’s project areas, including exploration, construction, mine planning operations.

12.    I am informed by Lisa Maher, FMG’s Heritage Manager, that:

(1)Within Western Australia and during the period from 2005 to the present time:

(a)Over 700,000 hectares have been the subject of ethnographic Aboriginal heritage surveys commissioned by FMG; and

(b)Over 130,000 hectares have been the subject of archaeological Aboriginal heritage surveys commissioned by FMG;

(2)Over 4,000 Aboriginal sites are currently recorded in FMG’s geographic information system as being located on mining tenements held by FMG; and

(3)In respect of areas the subject of mining leases, FMG has been granted in excess of 60 consents by the Minister pursuant to s18 of the AHA.

Aboriginal Site Register

13.    FMG is aware that a Register of Aboriginal Sites (“Register”) is maintained by the Registrar of Aboriginal Sites in accordance with the AHA.

14.    FMG maintains a comprehensive geographic information system (“GIS”).  The GIS is the primary tool used by the Heritage Department to ensure that FMG’s Heritage Obligations are satisfied.  Among other things, the GIS records Aboriginal sites contained on the Register, Aboriginal sites identified by FMG which have yet to be entered on the Register and Heritage Zones relevant to FMG’s activities.  I am informed by Jenny Thompson, FMG’s Manager of GIS, that the Register is uploaded into the GIS on a monthly basis.

Heritage Agreement

15.    FMG and the Kuruma Marthudunera Native Title Claimants are parties to a Heritage Agreement dated 1 May 2013 for the Inquiry Tenement

Guidelines for Consultation with Indigenous People by Mineral Explorers

16.    FMG endorses the principles set out in the Guidelines for Consultation with Indigenous Peoples by Mineral Explorers, published by the Department of Mines and Petroleum, Tenure and Native Title Branch, July 2004 (as updated).

Heritage Surveys

17.    It is the policy of FMG not to undertake ground disturbing activities without a heritage survey having first been undertaken.  The policy is inherent in:

(1)The following extract from page 3 of the GDP Procedure:

A GDP must be applied for in the following circumstances:

·     If ground disturbance or vegetation clearing is proposed;

·     If the activity on or purpose of the parcel of land in question is being altered e.g. from a lay down area to a workshop.

(2)The following extract form paragraph 4.1 of the Heritage Guidelines:

Heritage surveys are triggered by:

·     Project operations, expansion and development requirements; or

·     Applications for a Ground Disturbance Permit (see Part 5.5 of this document)

Proposed Programme of Works

18. Annexed and marked TJW3 is a true copy of the Statement by FMG Pilbara Pty Ltd pursuant to s58(1)(b) of the Mining Act 1978 (WA) which accompanied FMG Pilbara Pty Ltd’s application for the Inquiry Tenement (“S58 Statement”).